A judge whose spouse is an assistant prosecuting attorney must disclose the relationship whenever the prosecutor's office appears in a matter pending before the judge. The prosecutor appearing should disclose whether the spouse has participated personally and substantially in the pending matter. If the spouse is not personally and substantially involved in, has no supervisory role over, and is screened from the pending matter, the judge is not automatically disqualified and may preside. In such event, a party in the proceeding reserves the right to move for disqualification under MCR 2.003(C).

The judge is married to an assistant prosecuting attorney ("the spouse") practicing in the same jurisdiction at the prosecutor's office. Sometimes the spouse appears as a trial attorney before other judges in the circuit court, but never before his/her spouse. The spouse has no supervisory authority in the prosecutor's office except over his/her own cases that do not go before the judge. The spouse handles preliminary examinations in the district court and serves as a "duty prosecutor" by reviewing police reports and complaints to ascertain whether criminal charges will be initiated.

Three screening procedures are employed to avoid conflicts of interest between the judge and the spouse in accordance with MCR 2.003(B), which calls for automatic disqualification if the judge's spouse is acting as a lawyer in the proceeding:

When felony cases are assigned to the judge, the judge's clerk reviews the file to determine whether the spouse has had any involvement with the case. If the spouse was involved, the case is automatically assigned to another circuit judge.

The spouse's supervisor double-checks the clerk and reviews cases assigned to the judge to determine whether the spouse was involved in the case. For example, the spouse may have served as a duty prosecutor in the case by reviewing a police request for a warrant.

Criminal defense attorneys have "unfettered access" to all of the prosecutor's files in any pending case, except for attorney work product, affording any defense attorney the opportunity to discover involvement by the spouse that the first two procedures may have missed.

Even if a case makes it past all three procedural safeguards, a Notice and Waiver of Disqualification is sent to counsel of record disclosing the relationship between the judge and the spouse, in accordance with the guidelines discussed in JI-101. The judge claims the waiver must be signed before the case can move forward and if the waiver is not returned or if the defendant chooses to have the matter heard by a different judge, for any reason whatsoever, the file is automatically assigned to another judge. Upon review of the material the inquirer provided to this committee however, it appears if a defendant does not return the Notice and Waiver of Disqualification in a timely manner, the non-reply is deemed a waiver of disqualification and the case proceeds with the judge. Regardless, the judge maintains that JI-101, as currently interpreted, places an overwhelming burden on the other circuit judges, as a significant percentage of the judge's defendants ask to be reassigned to different judges. None of those defendants has provided a reason for the disqualification other than a desire to seek reassignment by virtue of the notice. The judge claims that this creates a significant imbalance in case assignments and that it is difficult to reassign other cases to the judge because those cases are often in advanced stages of litigation. The judge is not the first to encounter this situation. Written in 1989, R-3 acknowledges that there has been an "increase in the number of married couples where both spouses are practicing law."

The judge submits that the procedural protections followed by the judge's office and the prosecutor's office, involving disclosure and screening of the spouse from any involvement in criminal matters pending before the judge, should enable the judge to preside over such matters without the need for consent of the parties in each case, while reserving to any party the right to file a motion to disqualify under MCR 2.003(C).

ISSUE

The inquirer asks whether a judge who is married to an assistant prosecuting attorney must automatically withdraw from presiding in a criminal case on request of the defendant solely because of the marital relationship where:

The spouse will not appear before the judge in any matter;

The spouse has supervisory function only as to the spouse's own assignments;

No case is assigned to the judge where the spouse has been involved;

The spouse's supervisor screens the file to ensure the spouse has no involvement in the case;

If requested by the defendant, the judge will be disqualified if it is later discovered that the spouse was involved in the case.

DISCUSSION

Under MCR 2.003(B)(6), a judge is disqualified if the judge's spouse is acting as a lawyer in the proceeding. Disqualifications, other than for personal bias or prejudice, may be waived under the Remittal of Disqualification provisions of MCR 2.003(D). Where the spouse is not a lawyer acting in a proceeding before the judge, however, MCR 2.003(B) does not directly apply.

JI-101 required recusal of a judge married to an assistant prosecutor with supervisory responsibilities in any case in which the prosecutor's office appeared before the judge, unless the parties voluntarily requested the judge to proceed after disclosure of the relationship. JI-101 involved a situation where a district judge was married to the chief trial attorney of the prosecutor's office in the same jurisdiction. As chief trial attorney, the spouse had significant supervisory duties regarding prosecutorial matters, including the investigation, preparation and trial of felony cases in circuit court, supervising felony dispositions, waivers, trial scheduling, direct dispositions, trials, and the day-to-day activities of criminal investigations. JI-101 required the judge to disclose the relationship whenever the prosecutor's office appeared in a matter before the judge, even if the spouse was not involved in the case. Additionally, the prosecutor was required to disclose whether the spouse had personally and substantially participated in the matter. Even if the prosecutor believed that the spouse had neither personally nor substantially participated in the matter, the judge was to be recused, unless the parties voluntarily asked the judge to proceed.

JI-101 relied upon the opinions set forth in R-3 and CI-605 that a judge is disqualified where the law firm of the judge's spouse appears as an advocate for any party, unless the relationship is disclosed and all parties consent. "When a relative of the judge is employed by an advocate's firm appearing in the matter, the judge is recused unless the parties affirmatively ask the judge to proceed in the matter." In that situation, "the judge must disclose the relationship to all the parties to the proceeding and disqualify him/herself unless the parties formally request the judge to continue." R-3 noted that "[t]his is a more exacting standard than was suggested . . . for lawyer spouses, where disclosure would be mandatory only if all of the circumstances indicated that one of the spouses could have a personal interest in the outcome of the matter. Of course, the role of a judge differs from that of an advocate and this more exacting standard is clearly appropriate." By applying the same standard to a spouse in a supervisory role in a prosecutor's office as was applied to a spouse in a law firm appearing before the judge, JI-101 concluded that the judge is recused unless the parties affirmatively ask the judge to proceed.

The question presented in this opinion is whether a different recusal standard should apply to a judge married to a non-supervisory assistant prosecutor than to a judge married to a prosecutor with supervisory authority or a member of a private law firm, where the spouse is not acting as a lawyer in the proceeding.

In analyzing the disqualification issue presented, the interests of the community as a whole and the efficient administration of justice must be balanced against the interests of individual parties. On the one hand exists a "heavy presumption of judicial impartiality." People v. Wells, 238 Mich. App 383, 391, 605 N.W.2d 374 (1999). But on the other exists the notion that the nature of the relationship between married couples poses a possible threat to the integrity of the judicial process. The comment to MRPC 1.7 states "[w]hen lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer's family relationship will interfere with both loyalty and independent professional judgment." This committee has previously observed that in marital relationships, lawyers are likely to have a certain degree of "intimacy, confidentiality, and shared interest that creates the potential for conflict of interest in connection with a marital relationship." R-3.

Canon 1 of the Model Code of Judicial Conduct states that an "independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved." The Comment to MCJC 2 notes that "[m]aintaining the prestige of judicial office is essential to a system of government in which the judiciary functions independently of the executive and legislative branches. Respect for the judicial office facilitates the orderly conduct of legitimate judicial functions."

The inquirer distinguishes the present situation from those involving a judge married to a prosecutor with supervisory authority (JI-101) or a private attorney (R-3, CI-605). Here, the judge's spouse does not have supervisory authority over other cases.

JI-101 found the spouse's supervisory position to be "pivotal in determining [the cases in which] the prosecutor spouse had a 'personal and substantial participation.'" Screening the spouse from certain cases was therefore a practical impossibility due to the spouse's supervisory position.

The judge also expresses that an assistant prosecutor has no financial interest in proceedings before the court handled by other attorneys from the prosecutor's office, unlike a spouse who is a member of a private law firm appearing in a case. As noted above, J-4, R-3 and CI-605 require disqualification of a judge if a member of the law firm of the judge's spouse appears as an advocate, unless the parties request the judge to continue presiding in the case after disclosure of the relationship. The rationale of these opinions turned in part on the likelihood that the judge may have (or be perceived to have) a pecuniary interest in a matter before the court because of the spouse's financial and professional stake in the law firm handling the case, regardless of whether the spouse is appearing as a lawyer in the matter. In contrast, assistant prosecutors appear before the court as representatives of the people, and typically have no more than a de minimis interest in matters they present to the court. Unlike attorneys in a private law firm, assistant prosecutors assigned to handle specific cases do not represent clients of a firm, do not incur expenses that may be borne by other firm members, and do not pursue recovery or relief that will redound to the economic benefit of other firm members. And while a prosecutor acting in a supervisory capacity cannot practicably be screened from other cases in the prosecutor's office, as noted in JI-101, and may be subject to heightened political pressure associated with the policy and practice of the office, a non-supervisory assistant prosecutor can be screened and is not involved in managing or directing the work of others. Accordingly, the potential for conflict of interest is more attenuated where a judge presides over a matter in which other prosecuting attorneys appear and the spouse assistant prosecutor takes no role.

Therefore, where a spouse is an assistant prosecutor without supervisory authority over other cases in the prosecutor's office and is not acting as a lawyer in the proceeding, the potential conflict issue can be adequately addressed, and the rights of parties appearing before the court protected, if screening procedures are in place, the judge fully discloses the relationship to the parties, and both the judge and the prosecutor appearing in the matter affirm that the spouse has had no role and will not be involved in the proceeding. In such circumstances, any party reserves the right to bring a motion to disqualify under MCR 2.003(C) in the event a party believes that grounds for disqualification exist under the particular circumstances presented.

CONCLUSION

The judge married to an assistant prosecutor must disclose the marital relationship whenever the prosecutor's office appears in a matter pending before the judge, and the prosecutor appearing should disclose whether the spouse has participated personally and substantially in the pending matter. If the spouse is not personally or substantially involved and has no supervisory role in the pending matter, and if screening procedures are in place as to the spouse, the judge is not automatically disqualified, and may preside over the matter following disclosure to the parties. In such event, a party to the proceeding reserves the right to file a motion to disqualify the judge under MCR 2.003(C). If the spouse is personally and substantially involved in, or has a supervisory role relating to, the pending matter, the judge is recused unless the disqualification is remitted pursuant to MCR 2.003(D).